Sam Dipiazza v. United States

471 F.2d 719, 1973 U.S. App. LEXIS 12185

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 12, 1973
• Docket: 71-1992
• Status: Published

Opinion

PER CURIAM.

Appellant was convicted in a jury trial in the Southern District of Ohio of seven counts of. using interstate facilities to promote an illegal gambling enterprise and one count of conspiracy in violation of 18 U.S.C. §§ 1952, and 371. The conviction was affirmed by this court. 415 F.2d 99 (1969), cert. denied, 402 U.S. 949, 91 S.Ct. 1606, 29 L.Ed.2d 119 re hearing denied, 403 U.S. 924, 91 S.Ct. 2221, 29 L.Ed.2d 702 (1971).

Appellant then filed a motion to vacate sentence, 28 U.S.C. § 2255, on the grounds that the District Judge’s charge to the jury was incorrect. He appeals from the denial of this motion.

It is well settled in this circuit that a motion to vacate is not a proper substitute for appeal. Petro v. United States, 368 F.2d 807 (6th Cir. 1968); Hill v. United States, 223 F.2d 699, 701 (6th Cir.), cert. denied, 350 U.S. 867, 76 S.Ct. 113, 100 L.Ed. 768 (1955). Furthermore, jury instructions are not subject to attack under § 2255. Hollbrook v. United States, 441 F.2d 371 (6th Cir. 1971).

Affirmed.